JUDGMENT Aftab H. Saikia, J. 1. Heard Ms. P. Chakraborty, learned Counsel for the Petitioner as well as Mr. P.C. Gayan, learned Public Prosecutor, Assam. 2. By means of this application filed under Section 401, Code of Criminal Procedure read with 482, Code of Criminal Procedure the Petitioner has sought for dropping the proceeding in Sessions Case No. 44/95 pending before the learned Sessions Judge, Karimganj against her husband Sri Bijit Kumar Dey ('Sri Dey') who was nlissing from his official residence at Badarpur Staff Colony while working as Junior Telecom Officer in the establishment of Bharat Sanchar Nigarn Ltd. ('BSNL') on 9.10.1995 by drawing a presumption of his death under Section 108 of Indian Evidence Act as the statutory period of 7(seven) years of not being unheard of Sri Dey's whereabouts, has already expired on 8.10.2002. 3. The case of the Petitioner in short is that the Petitioner alongwith her husband, Sri Dey and other 12 persons were made accused in a Sessions Case No. 44/95 under Sections 302/201/34, IPC and during the trial of the said Sessions case, the Petitioner's husband as named above, was missing from his official quarter as already noted above on 9.10.1995 and till date his whereabouts are not known. 4. In course of the trial of the above mentioned Sessions case, the prosecution examined as many as 9 witnesses including the Medical officer and Investigating Officer, PW.6 and PW.9 respectively. During the trial learned Sessions Judge also could not frame charge against the husband of the Petitioner, Sri Dey as he was found to be missing from his official residence at Badarpur and since he was not traceable, the case against. Sri Dey was spilt up. 5. The learned Sessions Judge on proper appreciation of the evidence so adduced by those prosecution witnesses and on examination of the relevant documents exhibited in support of the prosecution case arrived at the finding that prosecution was wholly unsuccessful in proving its case against all the 13 accused persons beyond reasonable doubt and consequently all those persons were acquitted by the learned Sessions Judge, Karimganj vide his judgment and Order dated 15.7.1996. 6. 6. Since the other accused persons, accepting that the Petitioner's husband who was missing, were acquitted from the charges under Sections 302/201/34, IPC, it is submitted by the Petitioner that although her husband's whereabouts have not been known till date and in the process 7 (seven) years period already elapsed, the presumption may be drawn to the effect that Sri Dey was dead and accordingly the criminal case against him which was spilt up in the above mentioned case be dropped as abated. Accordingly, he may be given benefit of acquittal in the light of judgment and Order dated 15.7.96 passed by the learned Sessions Judge. 7. It is contended by Ms. Chakraborty, learned Counsel for the Petitioner that applying the provision of law laid down in Section 108 of the Indian Evidence Act such presumption of the Petitioner husband's death is permissible after the expiry of the period of 7 years. To bolster up her submission, the learned Counsel has relied upon the decision of the Apex Court reported in L.I.C. of India v. Anuradha AIR 2004 SC 2070 . 8. In the above cited case, the Apex Court in paragraph-12 observed as follows: 12. Neither Section 108 of the Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years absence and being unheard of having elapsed before that time. The presumption stands unrebutted for failure of he contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. The presumption stands unrebutted for failure of he contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death. 9. To determine the issue in hand, it would be necessary to refer to the prevision of Section 108 of the Indian Evidence Act and the same runs as under: 108. Burden of proving that person is alive who has not been heard of for seven years.- Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. 10. Having regard to Anuradha's case (supra) and also on ordinary reading of Section 108 of the Indian Evidence Act, it would indicate that presumption can be drawn if the person missing is not being heard of for a period of 7 (seven) years calculated back from the date when, the allegation is raised that such person was missing. At the same time, it is also to be noted that no presumption can be drawn or made as to the date or time of death. 11. In the instant case, it is admitted that Sri Dey has been missing since 9.10.1995 and in view of the same presumption is permissible that he was dead as his whereabouts are not known till date much after the expiry of the statutory period of 7 (seven) years, i.e., 8.10.2002 and accordingly the criminal trial in Sessions Case No. 44/95 against Sri Dey abates on the presumption of death of Sri Dey. And thereby, according to the opinion of the court, he is entitled to get the benefit of acquittal. 12. At this stage, Ms. Chakroborty learned Counsel for the Petitioner has submitted that for the purpose of drawal of such presumption, the Petitioner also submitted an application before the learned Sessions Judge, Karimganj on 29.1.2005, who in turn vide his order dated 29.1.2005 did not pass any order on such application although it was accepted that the accused Sri Dey had been missing from his official quarter at Badarpur and as per police report he could not be traced out. 13. Moreover, it is also contended by Ms. Chakroborty that this Court, in the exercise of the power vested upon it under Section 482, Code of Criminal Procedure, has the power to quash any criminal proceeding for the ends of justice. In the case in hand, according to her, since the Petitioner's husband who was one of the accused in the above mentioned Sessions case, has been missing beyond the period of 7(seven) years, the impugned proceeding against him can be dropped or quashed and resultantly the Petitioner may be given the benefit of acquittal. 14. In support of such submission, she has relied upon a decision of the Apex Court in a case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. AIR 1998 SC 128 wherein in paragraphs 29 and 30, the Supreme Court held as under: 29. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code of Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.... 30....Provisions of Articles 226 and 227 of the Constitution and Section 482of the Code are devised to advance justice and not to frustrate it. In our view the High Court should not have adopted such a power of judicial review is discretionary but this was a case where the High Court should have exercised it. 15. 30....Provisions of Articles 226 and 227 of the Constitution and Section 482of the Code are devised to advance justice and not to frustrate it. In our view the High Court should not have adopted such a power of judicial review is discretionary but this was a case where the High Court should have exercised it. 15. Under such factual premises as discussed above and also having regard to the statutory provisions as enumerated under Section 108 of Indian Evidence Act as well as the judicial authority of Anuradha's case (supra), this Court is of the considered view that the Petitioner has made out a case for quashment of the proceeding in the Sessions Case No. 44/95 against her husband by applying the provision of law laid down under Section 108 of the Indian Evidence Act as being abated on the death of her husband Sri Dey. Consequently, we hereby order for abatement of the Sessions Case No. 44/95 and in the interest of justice it is ordered that Sri Dey, due to presumption of his death as well as on acquittal of all the accused persons facing trial in Sessions case No. 44/95 by the learned Sessions Judge, Karimganj by his judgment and order dated 15.7.1996, shall get the benefit of acquittal. 16. In the result, revision petition stands allowed. Petition allowed